Opinion 90-40

This
opinion represents the views of the Office of the State
Comptroller at the time it was rendered. The opinion may no
longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on
the issues discussed in the opinion.

VILLAGE MAYOR -- Deputy (right to vote as trustee and deputy
mayor)
PUBLIC MEETINGS AND HEARINGS -- Voting Procedure (right of
village deputy mayor to vote as deputy and as trustee)

VILLAGE LAW, §4-400(1)(a): A village trustee who is also
deputy mayor does not vote both in his or her capacities as
trustee and deputy mayor during the absence or inability of the
mayor.

You ask whether a village trustee, when serving as deputy
mayor during the absence or inability of the mayor to attend a
meeting of the board of trustees, may cast two votes, one in
his or her capacity as trustee and the other in his or her
capacity as deputy mayor.

Village Law, §4-400(1)(h) makes it the responsibility of
the village mayor to appoint a member of the board of trustees
as deputy mayor. The deputy mayor, "during the absence or
inability of the mayor, is vested with all the powers and may
perform all the duties of the mayor" (see also, Public Officers
Law, §9). The mayor presides at meetings of the board of
trustees, "and may have a vote upon all matters and questions
coming before the board and he shall vote in case of a tie,
however on all matters and questions, he shall vote only in his
capacity as mayor of the village and his vote shall be
considered as one vote" (Village Law, §4-400[1][a] [emphasis
added]).

The quoted paragraph from section 4-400(1)(a) is identical
to language in section 88 of the former Village Law. In Anson
v Starr, 198 Misc 982, 101 NYS2d 948, the court considered the
question of whether, under former Village Law, §88, a village
trustee who also was the "acting village mayor" could vote both
as trustee and acting mayor on the filling of a vacancy in the
position of mayor.

The underscored portion ... was added by
Chapter 280 of the Laws of 1947. In view of
that amendment there can now be no doubt that
the mayor has but one vote. He need not
always vote. He is obligated to vote only
when there is a tie. In all other instances,
he may vote or not as he pleases. But if he
does vote, whether voluntarily or by mandate,
he has only one vote to cast. (101 NYS2d at
949-950).

The court held, therefore, that a trustee serving as
acting mayor had but one vote and could not vote both
in his capacity as trustee and in his capacity as
acting mayor. We note that the title to the position
of "acting village mayor" was re-designated as "deputy
village mayor" by chapter 60 of the Laws of 1966.

Accordingly, based on the foregoing, we conclude
that a village trustee who is also the deputy mayor
does not vote both in his or her capacity as trustee
and deputy mayor during the absence or inability of the
mayor (see also 14 Opns St Comp, 1958, p 210; 21 Opns
St Comp, 1965, p 486; 1969 Atty Gen [Inf Opns] 124).

October 16, 1990
Helen N. Petruccione, Village Clerk
Village of Yorkville